Davila v. State, No. 3--276A38

Docket NºNo. 3--276A38
Citation172 Ind.App. 425, 360 N.E.2d 283
Case DateMarch 07, 1977
CourtCourt of Appeals of Indiana

Page 283

360 N.E.2d 283
172 Ind.App. 425
Alfredo DAVILA, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee.
No. 3--276A38.
Court of Appeals of Indiana, Third District.
March 7, 1977.

[172 Ind.App. 426]

Page 284

Sally S. Nalbor, Gary, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Charles W. Vincent, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

HOFFMAN, Judge.

Alfredo Davila was tried by a jury and convicted pursuant to IC 1971, 35--24.1--4.1--1 (Burns Code Ed.), of selling heroin. On appeal he questions the sufficiency of evidence adduced at trial in the context of an entrapment defense.

Page 285

Viewed most favorably to the State, the evidence reveals that on February 15, 1974, Lucy M. Cruz, at the behest of her mother's fiance , informed an undercover police agent that Davila wanted her to sell heroin and become a prostitute. Upon considering her situation, the agent had Cruz arrange a meeting between himself and Davila so that an illegal drug transaction exposing the potential seller to arrest could be effectuated. According to plan, on February 17, 1974, the agent met Davila and Cruz at a Hammond laundromat where a discussion ensued regarding the sale of heroin. The police officer gave Davila $25 for the purchase. After an intervening walk to a nearby residence to procure the drug, they returned to the laundromat where Davila gave a foil packet of heroin to the agent. Thereupon Davila was placed under arrest.

Davila raises two issues under his challenge to the sufficiency of the evidence. First he asserts the evidence was both, insufficient and improperly admitted before a jury, to show probable cause to suspect that he was engaged in criminal activity. Second he contends that the evidence was insufficient to overcome his defense of entrapment.

[172 Ind.App. 427] Probable cause to suspect the accused in an entrapment case was formerly required in Indiana as a protection against potential overreaching by law enforcement officials. Smith v. State (1972), 258 Ind. 415, 281 N.E.2d 803; Walker v. State (1970), 255 Ind. 65, 262 N.E.2d 641. As a consequence, the consideration of whether there had been sufficient reason to suspect that the accused would engage in criminal activity before setting a trap for his arrest, was a matter of law properly raised in the context of the admissibility of such evidence. Walker v. State, supra. However in Hardin v. State (1976), Ind., 358 N.E.2d 134, our Supreme Court overruled Walker to the extent that it required proof of probable cause to suspect in an entrapment case. Thus, in the case at bar Davila's objection to the introduction of evidence of prior criminal activity can be considered only in the context of its appropriateness to his substantive defense and not with regard to insufficient proof of probable cause to set the trap. Hardin v. State, supra. Moreover, while appropriate evidence concerning Davila's proclivity for similar criminal conduct may have been relevant hearsay at a probable cause hearing, it would not have been allowable, absent a recognized exception, before a jury on the substantive issue of guilt. May v. State (1972), 154 Ind.App. 75, 289 N.E.2d 135. Cf: Kinnaird v. State (1968), 251 Ind. 506, 242 N.E.2d 500.

Mindful of these considerations, we nevertheless note, that the complained of error is not made apparent from a reading of the record. The relevant portions of defense counsel's colloquy with the court include the following:

'Q. Mr. Tonkovich, when you first received a phone call on February 15, 1974, had you heard of the Defendant prior to hearing it on the telephone?

'A. Yes, sir.

'BY MR. REARDON: Objection. That is completely irrelevant whether he heard of the Defendant.

[172 Ind.App. 428] 'BY THE COURT: The defense of entrapment has been raised, sufficiently to allow probable cause to be established prior to the incident complained of.

'BY MR. REARDON: Well, I think I have been--

'BY THE COURT: Is that the Prosecution's intent?

'BY MR. HALCARZ: Yes, your Honor. I believe reputation of the defendant known to the officer is relevant to show probable cause.

'BY THE COURT: That is the ruling as I understand it in drug cases. Do you have any authority to the contrary, Mr. Reardon?

'BY MR. REARDON: That is the law, your Honor.

'BY THE COURT:...

To continue reading

Request your trial
12 practice notes
  • Lewandowski v. State, No. 579S130
    • United States
    • Indiana Supreme Court of Indiana
    • May 17, 1979
    ...in an entrapment case. This Court then applied the new rule enunciated in Hardin retroactively in Davila v. State (1977), Ind.App., 360 N.E.2d 283. The retroactive application of Hardin eliminates any need for further discussion of (defendant's) first allegation of Consequently, an argument......
  • Townsend v. State, No. 2-479A110
    • United States
    • Indiana Court of Appeals of Indiana
    • April 13, 1981
    ...State must then rebut the element of police inducement. Gray v. State, supra, 231 N.E.2d 793; Davila v. State (3d Dist.1977) Ind.App., 360 N.E.2d 283, 286; Medvid v. State (3d Dist.1977) Ind.App., 359 N.E.2d 274, 275. The problem before the Court was whether the State had carried its burden......
  • Harrington v. State, No. 2-878A284
    • United States
    • Indiana Court of Appeals of Indiana
    • December 15, 1980
    ...Ind.App. 89, 289 N.E.2d 131. This determination is based upon the defendant's state of mind. Davila v. State (3d Dist. 1977) Ind.App., 360 N.E.2d 283, 286. If the criminal design was implanted in Harrington's mind by the police informant, he was entrapped. If the design originated in his ow......
  • Lewandowski v. State, No. 3-776A166
    • United States
    • Indiana Court of Appeals of Indiana
    • April 19, 1978
    ...in an entrapment case. This Court then applied the new rule enunciated in Hardin retroactively in Davila v. State (1977), Ind.App., 360 N.E.2d 283. The retroactive application of Hardin eliminates any need for further discussion of (defendant's) first allegation of Consequently, an argument......
  • Request a trial to view additional results
12 cases
  • Lewandowski v. State, No. 579S130
    • United States
    • Indiana Supreme Court of Indiana
    • May 17, 1979
    ...in an entrapment case. This Court then applied the new rule enunciated in Hardin retroactively in Davila v. State (1977), Ind.App., 360 N.E.2d 283. The retroactive application of Hardin eliminates any need for further discussion of (defendant's) first allegation of Consequently, an argument......
  • Townsend v. State, No. 2-479A110
    • United States
    • Indiana Court of Appeals of Indiana
    • April 13, 1981
    ...State must then rebut the element of police inducement. Gray v. State, supra, 231 N.E.2d 793; Davila v. State (3d Dist.1977) Ind.App., 360 N.E.2d 283, 286; Medvid v. State (3d Dist.1977) Ind.App., 359 N.E.2d 274, 275. The problem before the Court was whether the State had carried its burden......
  • Harrington v. State, No. 2-878A284
    • United States
    • Indiana Court of Appeals of Indiana
    • December 15, 1980
    ...Ind.App. 89, 289 N.E.2d 131. This determination is based upon the defendant's state of mind. Davila v. State (3d Dist. 1977) Ind.App., 360 N.E.2d 283, 286. If the criminal design was implanted in Harrington's mind by the police informant, he was entrapped. If the design originated in his ow......
  • Lewandowski v. State, No. 3-776A166
    • United States
    • Indiana Court of Appeals of Indiana
    • April 19, 1978
    ...in an entrapment case. This Court then applied the new rule enunciated in Hardin retroactively in Davila v. State (1977), Ind.App., 360 N.E.2d 283. The retroactive application of Hardin eliminates any need for further discussion of (defendant's) first allegation of Consequently, an argument......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT